B. Bhattacharya, J.
1. By this writ application, the writ petitioner has challenged the order dated 4th/5th December, 2002 being Memo No. 582.1(7)- LC-om passed by Director of School Education, West Bengal, by which the panel prepared by the School Authority for the post of Headmistress, has been cancelled.
2. The following facts are not in dispute;
For the post of Headmistress of the concerned School reserved for Scheduled Caste candidates the School Authority got prior permission of the District Inspector of Schools (S.E.), Birbhum.
3. The School Authority was permitted to obtain names from National Employment Exchange and to advertise the post in a State level daily leading newspaper simultaneously. The School Authority informed the National Employment Exchange for sending names for the said post but no name was received by the School Authority. The post was advertised on May 26, 1996 in 'Ganashakti Patrika' seeking applications within one month from the date of advertisement and pursuant to such advertisement only the petitioner applied.
4. It appears that the petitioner made such application on 15th June, 1996 direct to the School Authority. Subsequently, on 9th September, 1996 the Hindustan Fertilizer Corporation Limited, Durgapur Unit, where the petitioner was working as a teacher also sent a copy of her application with intimation that such authority had no objection to release her in the event if she was selected.
5. The petitioner alone appeared at the interview and the Selection Committee sent one-man panel including the petitioner alone for approval. Such panel not having been considered, the petitioner in the past moved a writ application being W.P. No. 13101(W) of 1999 and the said writ application was disposed of by Amitava Lala, J. on January 13, 2000 by directing the District Inspector of Schools to approve the said panel by completing all the formalities within one month from the date of communication of the said order.
6. The Secretary and Teacher-in-Charge of the school preferred an appeal being MAT No. 61 of 2001 along with an application for stay and the said appeal was disposed of by a Division Bench of this Court by order dated February 19, 2001 by directing the respondent No. 3 to take necessary steps for considering the panel for approval within a specified date.
7. Pursuant to such Division Bench decision, the respondent No. 3 by order dated February 28, 2001 informed that the panel in question was examined and due to irregularity the same could not be approved.
8. Being dissatisfied, the petitioner moved a further writ application being W.P. No. 3648(W) of 2001 and the same was disposed of by Pranab Kumar Chattopadhyay, J. by directing the District Inspector of Schools, Birbhum to refer the matter before Director of School Education of West Bengal within a period of fortnight from the date of communication of such order and the Director of School Education, West Bengal was directed to pass appropriate order in respect of approval of the panel after giving an opportunity of hearing to the petitioner and also to other person or persons whose presence the said Director of School Education would consider necessary.
9. In compliance with the aforesaid order passed by Chattopadhayay, J. the Director of School Education has passed the impugned order thereby refusing to approve the panel.
10. Being dissatisfied the petitioner has come up with the instant writ application.
11. After hearing the learned counsel for the parties and after going through the order impugned, I find that the Director of School Education has refused to approve the panel on two grounds.
12. First, according to the said respondent, the School authority received only one application in response to their advertisement dated 26th May, 1996 and having due regard to para 6(j) of Memo No. 2006-GA dated 27th October, 1995 issued by Director or School Education, it was the duty of the School authority to readvertise that post and if, in spite of such readvertisment, the School authority did not receive any further application, then only, they could proceed to take interview of only one candidate.
13. After going through the said memo it appears that a panel of less than three candidates can be prepared only for the posts reserved for SC/ ST/OBC, provided names of three or more candidates are not available in spite of all possible efforts. In the present case, it appears from the report given by District Inspector of School annexed as P-10 that the School authority sought for names from National Employment Exchange but did not receive any name. The school authority also gave advertisement in a State level daily newspaper but in spite of that only one candidate, viz. the petitioner responded. Thus, the school Authority took all possible steps for the advertisement of the post but only the petitioner applied.
14. There is no provision for giving re-advertisement once names are sought from National Employment Exchange, who maintains the names of suitable candidates from Scheduled Caste category and in addition to that advertisement had also been given in a State level daily newspaper. Thus the first ground of rejection indicated by Director of School Education cannot be supported and is without any basis.
15. The second ground for not approving the panel was that on 9th September, 1996 the petitioner's application was forwarded by her employer and, as such, it casts a doubt as to the actual date of receipt of her application by School Authority which was dated 15th June, 1996 as it did not bear any office stamp of the School, showing its receipt by the School Authority by the due date. In this connection, it may not be out of place to refer to the observation of the administrator of the school who is an officer of the State Government and who himself has clarified that the application filed by the petitioner was received by the School Authority on 15th June, 1996 that is to say within one month from the date of publication of the advertisement in newspaper (see annexure P-5). Therefore, the second ground assigned by the Director of School Education for not approval of the panel is also without any cogent reason.
16. Mr. Chakraborty, the learned counsel appearing on behalf of the State, in this connection, has taken a third contending that the petitioner having applied for the post under Scheduled Caste category, but she having married a Brahmin as would appear from her application, she ceased to be a Scheduled Caste candidate the moment she married a Brahmin. In support of such contention, Mr. Chakraborty relied upon the following decisions;
1) Soosai v. Union of India and others reported in 1985 (suppl) SCC 590
2) Mrs. Valsamma Paul v. Cochin University and Ors. reported in : [1996]1SCR128
3) Syndicate Bank v. Vidya G. Nayek reported in (2001)1 CHN 448
17. Mr. Deb Barman, the learned counsel appearing on behalf of the petitioner, has, on the other hand, relied upon the Compendium on Reservation for Scheduled Castes, Scheduled Tribes and other Backward classes issued by Government of West Bengal and has particularly relied upon Clause 3 which is quoted below:
'Clause 3: Claims through marriage:
The guiding principle is that no person who was not a Scheduled Caste or a Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or a Scheduled Tribe merely because he or she had married a person belonging to a Scheduled Caste or a Scheduled Tribe.
Similarly a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that Scheduled caste or Scheduled Tribe as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or a Scheduled Tribe.'
18. In the case of Soosai v. Union of India and Ors. the provisions of Constitution (Scheduled Castes) Order, 1950 were challenged as unconstitutional on the ground that only Hindu or Sikh members of the castes enumerated in the schedule to the order are deemed to be Scheduled Caste excluding the petitioner who although belonged to Adi-Dravida community because of his conversion to Christianity. The Supreme Court upheld the said provisions as constitutional in the absence of any authoritative and detailed study to show that even after conversion their social, cultural, educational and economic backwardness and disability remained the same. Thus, the said decision does not give answer to the question whether a Scheduled Caste woman ceases to be so after marrying a Brahmin.
19. In the case of Valsamma Paul v. Cochine University a person born in forward class transplanted in backward class by marriage and sought benefit of reservation for backward class. In such a situation, the Apex Court held that a candidate who had the advantageous start in life being born in forward caste but is transplanted in backward class by marriage or adoption or conversion does not become eligible to the benefit to reservation either under Article 15(4) or 16(4) as the case may be. Acquisition of status of Scheduled Caste by voluntary mobility into those categories, the Apex Court held, would play fraud on the Constitution and frustrate the benign constitutional policy. If we apply the said principle to the facts of present case it can be successfully argued that the petitioner having faced the disadvantageous start in life being born in a Scheduled Caste family, the benefit of reservation accrued in her favour cannot be taken away merely because she has married a Brahmin boy.
20. In the case of Syndicate Bank (supra) the question was whether an employee, born in the wedlock of a Brahmin father with a member of Scheduled Tribe was guilty of fraud by describing herself as a member of Scheduled Tribe. The Division Bench answered such question in negative. In my view, the said decision is not relevant for adjudicating the question involved in this case.
21. After hearing the learned counsel for the parties and after going through the aforesaid decisions, I am, thus of the view that if a Scheduled Caste is married to a caste other than Scheduled Caste, for the aforesaid reason, he or she cannot be deprived of the benefits of reservation for the members of Scheduled Caste and, as such, in the present case, the petitioner is entitled to retain the privilege of reservation for Scheduled Caste by birth not withstanding the factor that she is married to a Brahmin.
22. Mr. Chakraborty lastly tried to convince this Court that the application fielded by the petitioner on 15th June, 1996 should be ignored and the application, which came through her employer should be the actual application in accordance with law and as such, he contended that the application sent by her employer was really received beyond one month from the date of advertisement.
23. I, however, find that according to the rules the School Authority before giving appointment letter should satisfy itself that the petitioner will be released by his employer in the event he is given appointment. Therefore, at the time of giving appointment if the candidate can produce consent letter from the present employer that will be sufficient compliance of the rules. The rules do not say that the petitioner's application should come through the employer. In the instant case, I have already pointed out that the petitioner applied on 15th June, 1996 and in the month of September, 1996 her employer gave 'no objection' to the School Authority which came before approval of panel. Thus, I am unable to accept the contention of Mr. Chakraborty that application that was sent through the employer in the month of September is the real application of the petitioner.
24. I have already held that both the reasons assigned by Director of School Education are without any basis and cannot be grounds for rejection of panel. Thus no other defect having been pointed out. It is a fit case where direction should be given upon the Director of School Education to approve the panel. I, thus, allow this writ application and direct the Director of School Education to approve the panel and give necessary direction to the School Authority to appoint the petitioner as Headmistress of the School within a month from date.
In the facts and circumstances, there will be, however, no order as to costs.